If all Pakatan states held local polls, it will force the federal government to amend the Local Government Act (LGA) 1976 to allow the third vote, says an academic.

GEORGE TOWN: All Pakatan Rakyat-ruled states should hold local government elections to prove that the coalition is serious about political reforms and transformation.

Political commentator Sivamurugan Pandian from Universiti Sains Malaysia (USM) insisted that Pakatan states should hold respective local polls before the next general election.He said by holding council elections in its states, Pakatan could prove that it had fulfilled its 2008 general election promise.

He was commenting on the enactment of the Local Government Elections (Penang Island and Province Wellesley) Enactment 2012 in the Penang Legislative Assembly on Wednesday.Hence, barring any legal challenges from the Barisan Nasional federal government or the Election Commission (EC), local government elections must be held in Penang within 180 days from the day of the enactment, which was passed unanimously.

State executive councillor in charge of local government and traffic management affairs, Padang Kota assemblyman Chow Kon Yeow, said that the state government would attempt to obtain a pre-emptive court declaration that the enactment was not ultra vires of the Federal Constitution to compel the EC to conduct the local polls.

Sivamurugan hoped that Pakatan states of Selangor, Kedah and Kelantan would emulate Penang by enacting a similar law to hold the municipality polls.

He wondered why other Pakatan states had not been so enthusiastic to hold local polls.

“Why has Kelantan never bothered to have the third vote despite being in power since 1990?

“Are Kedah and Selangor comfortable with the autonomy to appoint their proxies in local councils?” asked the deputy dean of USM’s school of social sciences.

It will apply pressure on federal govt

He suggested that if all Pakatan states held local polls, it would force the federal government to amend the Local Government Act (LGA) 1976 to allow the third vote.

The federal government suspended the local government polls since 1965 during the Indonesian Confrontation.

Despite previous attempts by the DAP-helmed state government to restore the third vote, the EC had snubbed them by pointing to Section 15 of LGA76, which prohibited local government elections.

Sivamurugan questioned why it took more than four years for the Pakatan state government to enact a law to hold local polls when many Penangites demanded it to be implemented much earlier.

“DAP and Pakatan have to convince voters that it was not just another pre-election gimmick,” he said.

He, however, welcomed the state government’s initiative to allow the people to take part actively in local democracy.

“Hope we can have a vibrant local government elections for local residents to choose their local councillors,” he said.

Parliament has no power to pass provisions like Section 15 of the Local Government Act 1976, which prohibits local government elections, lawyer Tommy Thomas has argued.

This is ultra vires (beyond the powers of) the federal constitution, which allows states to hold such elections, he submitted before a five-member Federal Court panel led by Court of Appeal president Justice Md Raus Sharif.

Thomas (left) is representing the Penang government and former Aliran president P Ramakrishnan, the petitioner in this case, in seeking to compel the Election Commission to restore local government elections in the state.

In 1965, prime minister Tunku Abdul Rahman Putra had temporarily suspended local government elections, due to the declaration of an Emergency during Indonesia’s ‘confrontation’ with Malaysia.

“The ban still stands despite what was practised between 1951 and 1965,” Thomas said.

In 2012, the Penang state legislative assembly passed the Local Government Elections (Penang Island and Province Wellesley) Enactment to revive the third vote, but has been stymied in its efforts to enforce it.

The state government and Ramakrishnan are seeking a declaration that Section 10 and 15 of the Local Government Act are ultra vires the federal constitution in relation to the state government’s powers.

Ramakrishnan (right) is further claiming that Section 15 deprives him of his right to liberty to vote in a local government election.

The question of law, to be decided by the bench - also comprising Justices Suriyadi Halim Omar, Ahmad Maarop, Md Apandi Ali and Ramly Ali - is whether Parliament has the power to enact laws relating to local government elections.

Tommy said federal law has to be challenged because local government elections are under the state government’s purview.

He further said that an amendment to the Local Government Act in 1991 had appeared to back the reinstatement of the third vote, but that nothing has been done to date.

Judgment deferred

Senior federal counsel Alice Loke, representing the federal government and the EC, insisted Section 15 of the Local Government Act is valid.

This, Loke said, is to provide uniformity of the law between the federal and state jurisdictions.

She disagreed that a distinction should be made between local governments and local government elections.

The hearing was initially fixed for the whole day. However, it appeared that the bench was hurrying Tommy through his submission.

Justice Md Raus told him several times that the judges had read the submission and to deliver his arguments in point form, and “not to treat us as students and lecture us”.

He then reserved the decision to another date.

Penang Chief Minister Lim Guan Eng (left), who was present, said the state has a strong case.

"For 50 years, we have been waiting to hold local government elections and to compel the EC to abide by our directive to hold this," Lim said.

"In the ninth schedule of the Federal Constitution, under the state lists, it is within the powers of the state to hold local government elections."

PUTRAJAYA - The Federal Court today reserved its judgment on a petition by the Penang state government and an individual to have local government elections restored after hearing submissions from all sides today.

Federal Court judge Tan Sri Md Raus Sharif, who headed a five-man panel, said they would deliver a written judgment later.

Besides the Penang government, the other applicant was P. Ramakrishnan, former president of the non-governmental organisation, Aliran. They filed the petition on July 27, last year, naming the Federal Government and the Election Commission as respondents.

In the petition, the applicants are seeking to declare Section 15 of the Local Government Act 1976 invalid as they claimed that the section was void because Parliament acted beyond its powers under the Federal Constitution in enacting that provision.

Earlier, counsel Tommy Thomas, who appeared for the applicants, submitted that the two terms – "local government" and "local government elections" – were entirely different pursuant to the State List which explicitly provided that the state was within its powers to enact laws on local government elections.

He also said that under Article 76 (4) of the Federal Constitution, Parliament's power was limited in ensuring a uniformity of laws and policies, and the article did not deal with abolishing local government elections altogether.

He further submitted that abolishing local government elections denied the constitutional rights of a citizen, including depriving them of their liberty, equality and freedom of speech under the Federal Constitution.

Senior federal counsel Alice Loke, who represented the respondents, contended that the federal government had the power to enact Section 15 of the Local Government Act.

The hearing of the petition followed the earlier decision of Federal Court judge Datuk Hasan Lah in granting leave to the state government and Ramakrishnan to proceed with the petition to challenge the validity of the provision in the Local Government Act 1976 which prevented state legislatures from providing for local government elections within their states.

He allowed it on a sole legal question to be deliberated and decided by the Federal Court on whether Parliament has the power to enact laws relating to local government elections.

The Pakatan Rakyat-led Penang government has been attempting to restore local government elections which were abolished on March 1, 1965. -Sundaily